136 / 350
DAVID PETRLÍK
CYIL 4 ȍ2013Ȏ
has legitimately privileged the coherence of protection of human rights in Europe
and a due and swift respect of the obligation which was imposed by the authors of
the Treaty of Lisbon in Article 6(2) TEU.
Consequently, it recommended to the Council of the EU opening of negotiations
on the accession only three months after the entry into force of the Treaty of Lisbon.
In June 2010 the Council authorised the opening of these negotiations. Even though
some Member States had a reserved stance on the accession,
78
the Agreement on
the accession was finalised in April 2013. Shortly afterward, in July 2013, the
Commission made a request to the Court of Justice for an Opinion pursuant to
Article 218(11) TFEU, in which the ECJ would rule whether the said agreement is
compatible with the Treaties.
79
If the Court of Justice decides that the agreement is
compatible, it must still be ratified, accepted or approved by the Member States of
the Council of Europe and by the EU. It is realistic to assume that the agreement
could enter into force around 2016, unless it is found incompatible with the Treaties.
Once the EU accedes to the ECHR, the relationship between the EU system of
fundamental rights and the ECHR system may change, as the
Bosphorus
doctrine is
based on a premise that the EU is not a Contracting Party of the ECHR and it is
not formally bound by this convention. In addition, the Agreement on the accession
does not contain any provision that would indicate that the EU should be treated
differently from other Council of Europe Members and that it should not bear the same
obligations.
80
Conversely, the Draft Explanatory Report to this agreement stressed that
the “current control mechanism of the [ECHR] should, as far as possible, be preserved
and applied to the EU in the same way as to other High Contracting Parties. The EU
should, as a matter of principle, accede to the [ECHR] on an equal footing with other
Contracting Parties, that is, with the same rights and obligations.”
81
78
Negotiations on the Agreement on the accession were even stalled for some period of time, as certain
Member States had expressed doubts and raised questions on the draft agreement, drawn up at the
technical level in June 2011 (see 2012 Report on the Application of the EU Charter of Fundamental
Rights, p. 9).
79
Opinion 2/13. In this regard, it is worth noting that this is the second time that the Court of Jjustice
rules on the possibility of accession of the EU to the ECHR. In Opinion 2/94, it denied this possibility
for lack of legal basis in the Treaties. The accession was planned by virtue of ex-Article 235 EC
(Article 352 TFEU). The Court of Justice held that such a modification of the system for the protection
of human rights in the Community (Union), with equally fundamental institutional implications for
the Community (Union) and for the Member States, would have been of constitutional significance
and would have therefore been such as to go beyond the scope of Article 235. It could have been
brought about only by way of Treaty amendment.
80
It is true that Protocol No. 8 relating to Article 6(2) TEU on the accession of the Union to the ECHR,
annexed to the Treaty of Lisbon, states that the accession shall respect the specificity of the Union legal
order. However, the Agreement on the accession takes into consideration the specific characteristics of
the Union mainly with regard to procedural aspects. From the substantive point of view, it does not
provide for any safeguards in respect of any specific features of the EU.
81
See also Draft Explanatory Report to the Agreement on the Accession of the European Union to the
Convention for the Protection of Human Rights and Fundamental Freedoms set out in Annex V to the
document of the Council of Europe cited
supra
note 70, paragraph 7.